Clause 1.—(GENERAL DUTIES OF MINE AND QUARRY OWNERS.) (Hansard, 30 June 1954)

§ Mr. Joynson-Hicks
I beg to move, in page 1, line 9, to leave out "reasonably be calculated," and to insert 'be necessary."
This is the first of what, I fear, the House will consider to be a very long series of Amendments—in fact, there are 36 in this particular series—and, therefore, perhaps it would be convenient, Mr. Deputy-Speaker, if I mentioned how they arise. They all flow from, and are consequential upon, Clause 149. Clause 149 is the new Clause which was introduced in Committee, after a great deal of discussion and consultation.

§ Mr. D. Griffiths
And heart burning.

§ Mr. Joynson-Hicks
It was introduced in its final form now in the Bill without a Division, and, I think, with the approval of the Committee.
The object of the new Clause was to provide one omnibus line of defence running through the Bill instead of the numerous escape Clauses which are scattered in the Bill. As the new Clause had to be considered at the end of the Committee's considerations, it was not possible in Committee to deal with the question of removing from the Bill the various escape Clauses which have been supplanted by Clause 149. It is for that reason that it is necessary for us to ask the indulgence of the House to deal with these Amendments as they crop up, which I think the House will probably be able 1398 to consider, after this first one, as consequential Amendments. They are all to the effect of deleting the phrases "reasonably practical," "reasonably calculated" and "reasonably necessary." This particular Amendment is to delete "reasonably be calculated."

§ Sir Thomas Moore (Ayr)
I am very grateful for this opportunity of saying a few words on this Amendment which as my hon. Friend the Parliamentary Secretary says is one of a series extending throughout the Bill and which of course, is tied up with Clause 149. I am not a lawyer, although I hope that will not be held against me, and I cannot therefore express my argument in legal phraseology. I know, however, that my right hon. and learned Friend the Attorney-General will recognise my inevitable shortcomings and will give me the assurance and comfort in layman's language which my hon. Friend the Parliamentary Secretary has not given in his opening remarks.
5.30 p.m.
Those Members of the House who were Members of the Standing Committee may recall that on several occasions I referred to the difficulties that might be experienced by employers in the mining and quarrying industries. In the view of the quarry owners, in particular, this series of Amendments seems to impose new, additional and onerous obligations which they feel it might be almost impossible to fulfil. For that purpose, they want an assurance from my right hon. and learned Friend that their fears are groundless.
In other Amendments of the same nature throughout the Bill, there is a change in phraseology from other Acts of Parliament, such as the Coal Mines Act, 1911, inasmuch as "impracticable" has been used instead of "reasonably practicable." I do not know the precise legal difference between the two phrases, and it is on this precise point that I should like comfort from my right hon. and learned Friend.
Being ignorant in such matters, I sought the guidance of certain legal friends in the House, and they have quoted a number of judgments that were given in cases similar to those which might arise in connection with the Bill when it becomes an Act. I was given the name of Lord Atkin, in the case of the Coltness Iron Company v. Sharp and was referred to certain remarks by Lord 1399 Tucker and an interesting judgment by Mr. Justice Maule. They all seem to combine to regard the words "reasonably practicable" as the proper and fair method of describing the responsibility which must be placed on the quarry or mine owner or on the mine manager.
Mr. Justice Maule, who gave an example, said that a man may be said to have lost a shilling when he dropped it into deep water, and although it might be possible by some contrivance or other to recover it, it would not be reasonably practicable to do so because of the labour, time, and so on, involved to get the shilling out of deep water. That is a rather telling argument. I can only say that I have such implicit confidence in the judgment and integrity of my right hon. and learned Friend that I am willing to accept any assurance that he can give me.
There is one point that it is important to clear up. When does a qualified duty or obligation cease and when does it become absolute? The quarry owners believe that all duties that are imposed on them, whether rightly or wrongly—I am merely expressing a view—should be qualified by an element of reasonableness. It is on this one issue that I seek the clarification of my right hon. and learned Friend.

§ The Attorney-General (Sir Lionel Heald)
My hon. Friend the Member for Ayr (Sir T. Moore) has rather put me on the spot in what he expects me to be able to do. I think that the House would like me to explain as briefly as I can the point which troubles my hon. Friend and those who have asked him to raise it, and to explain how I think their fears are unfounded.
As has been mentioned, the origin of the Amendment and some 30 or more consequential Amendments is that we have decided that it is not desirable to have the Bill, as one might say, peppered with specific escape provisions. In the Coal Mines Act, 1911, there was what might be called an overall escape provision. When we came to prepare the present Bill, we thought it would be rather better to deal with the individual cases and thereby, perhaps, deal with the very point which my hon. Friend has raised; that is to say, how to show where the absolute obligation ends and the qualified obligation begins.
1400 Throughout the Bill one finds expressions like "as may reasonably be calculated," "so far as is reasonably practicable," and so on. When the matter came to be discussed in Committee—I speak in the hearing of hon. Members opposite who have pleasant, and perhaps some not so pleasant, recollections of those long days we spent upstairs—it become obvious as we went along that this constant repetition of the expression "not reasonably practicable" and similar expressions was causing everyone a great deal of irritation. The feeling grew more and more that he old system of having one all-over Clause, drawing the individual obligations in clear terms and then giving managers and owners some general right of escape, was preferred by the Opposition, and there were also Members on this side who seemed to feel the same way.
Therefore, after we had passed a number of the Clauses—that is why these Amendments have to be made now—I was asked to see, with the assistance of the Parliamentary draftsman, whether it would be possible to find a form of words which would provide a general escape Clause in terms which were acceptable and which would not substantially alter the legal position from what it was before, and which would enable us to get rid of these numerous irritants.
In so doing, I referred at once to the Coal Mines Act, 1911, in Section 102 of which I found that there was this present protection. The significant thing was that it was in two parts. Subsection (3) dealt with the criminal liability, and subsection (8) dealt with the civil liability. The language that was used in those two cases was slightly different.
In the case of the civil liability, the language was that the owner shall not be liable to an action for damages … for breach of statutory duty in respect of any contravention of or non-compliance with any of the provisions of this Act if it is shown that it was not reasonably practicable to avoid or prevent the breach. Those are the words that have been used in a large number of these "peppering" provisions. In subsection (3), dealing with the criminal provisions, nothing was to render the owner, agent, or manager of a mine liable to a penalty in respect of any contravention … if he proves that the contravention or non-compliance was due to causes 1401 over which he had no control and against the happening of which it was impracticable for him to make provision. It was decided—I think the Committee generally approved—that we should have one single provision covering both civil and criminal proceedings. I think one can see at a glance from what I have read that there is plenty of room for the lawyers to get into arguments if there is a change in the same subsection.
I must not trespass on Clause 149, but it can be seen by reference to it that we have there provided a general escape Clause based largely on the word "impracticable." We have made it as simple as possible in deference, not to the Opposition, but to the men who have got to do the actual work in the mine, and who are entitled to read and do read the provisions of the Bill. A great many people read Acts of Parliament, and it was impressed upon us that the language of an Act was an important thing and simplification was something which would be welcomed. The House of Commons has said that recently on several occasions. We therefore took a simple expression based on the word "impracticable," as hon. Members can see by looking at the Clause.
What has been said is that because civil liability in the 1911 Act was based on the expression "not reasonably practicable," the changing of the wording to "impracticable" might have the effect of placing a heavier onus on the owner than was the case before. All I can say is that even if it were not for the existence of Section 102 (3) in the 1911 Act, to which I have already referred, I would say there is substantially little difference between these two things. But when one finds that the word "impracticable" is the word actually used for criminal liability in the 1911 Act, I do not think that anyone can say there is anything unreasonable in making that the criterion of the present Bill.
I am entirely in the hands of the House in the matter, and, if I can, I will give any further explanation upon it if that is desired. I cannot see that there is any real reason for alarm. We have given the benefit to the owners in this way. The protection that we provide is based upon the criminal provisions of the 1911 Act, and the House will be aware that in similar circumstances the 1402 liability is always less and the onus of proof is always more easily discharged by a person who is accused of any offence or contravention under the criminal code than in any other case. Therefore, I think the words we have adopted are fair to the owners, and I hope that the House will accept them.

§ Mr. Richard Fort (Clitheroe)
Can my right hon. and learned Friend quote any case in which the expression containing the word "impracticable" in the 1911 Act has been defined by judicial decision?

§ The Attorney-General
I am afraid I cannot give it, for the reason that "impracticable" has relation to criminal cases, and there are no criminal cases of which I am aware that have gone to any court of appeal where it was necessary for the court to define the word "impracticable." If the matter is dealt with in the ordinary criminal courts, there is no necessity for any such decision. There is the decision on the word "impracticable" to which my hon. Friend referred when he was talking about hearing the penny drop.
It has been said, and I hope it is hardly necessary for me to repeat it, that when one is using the word "impracticable" one does not mean "impossible." One means "impracticable" according to the businesslike understanding of people who are carrying out commercial or industrial operations.
As has already been said, no one wants the question of costs to interfere with safety, but it will be obvious that, if it were necessary to expend several million pounds in order to avert the possibility of an accident, no one would suggest that that has got to be done. After all, we must conduct this great industry on a proper basis. Therefore, anyone who says that by using the word "impracticable" we would make it impossible for the owners to escape liability even in cases where they are faced with vast expenditure is not speaking accurately, and I do not think the House need be alarmed by that possibility.

§ Mr. Joynson-Hicks
I beg to move, in page 2, line 15, at the end, to insert: and to the manager of the mine or, as the case may be, the manager of the quarry or (where there is more than one manager thereof) each of them. This Amendment gives effect to an undertaking given by my right hon. Friend the object of which is to ensure that, in the event of an owner giving instructions of special responsibility to any person who is not a manager, copies of the instruction shall be sent by the owner or given by the owner to the manager of the mine or any manager of a quarry. That fully implements the undertaking which my right hon. Friend gave.